Erck v. Omaha Nat. Bank

• Citation: 62 N.W. 67,43 Neb. 613
• Parties: ERCK v. OMAHA NAT. BANK.
• Decision Date: 05 February 1895
• Court: Supreme Court of Nebraska

43 Neb. 613

62 N.W. 67

ERCK

v.OMAHA NAT. BANK.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

1. Although the mere failure to file a motion for a new trial in the court below is not alone sufficient ground for dismissing a petition in error, yet where no such motion has been filed, and no bill of exceptions has been settled and allowed, and it appears from an inspection of the record that the petition in error presents no question for review on a motion to dismiss, the cause will be considered as submitted on the merits, and the judgment affirmed.

2. An exception to a final judgment is unnecessary to a review of the cause.

3. Alleged errors not assigned in the petition in error will not be considered.

4. An assignment in a petition in error not relied upon in the briefs filed will be deemed waived.

5. The fact that a judgment exceeds the sum indorsed on the summons is unimportant where the defendant has appeared and answered to the merits.

Error to district court, Douglas county; Hopewell, Judge.

Action by the Omaha National Bank against John H. Erck and others. Judgment for plaintiff, and defendant Erck brings error. Affirmed.Geo. O. Calder, for plaintiff in error.

Wharton & Baird, for defendant in error.

NORVAL, C. J.

This action was instituted in the court below by the Omaha National Bank against John H. Erck, Christian Specht, and George E. Specht, to recover the amount alleged to be due upon a promissory note executed by the defendants. Upon the trial, the plaintiff below had judgment for the sum of $172.66, and the defendant Erck prosecuted a petition in error to this court, alleging the following grounds for reversal of the judgment: (1) The court erred in admitting the evidence. (2) The judgment is not sustained by sufficient evidence, for that it should have been rendered against said plaintiff in error, if rendered at all, as surety on said note, and not as principal. (3) The judgment is not supported by the pleadings. (4) The court erred in refusing to grant a continuance to plaintiff in error when the cause was reached for trial. The defendant in error has filed a motion to dismiss the petition in error, on the following grounds: (1) No motion for a new trial was filed in the districtcourt. (2) No exception was taken to the judgment. (3) The alleged errors assigned in the petition in error occurred during the trial of the cause, and should have been called to the attention of the court below by a motion for a new trial. (4) The record discloses no error, and it is apparent that the cause was removed to this court for delay merely. (5) No bill of exceptions has been settled and allowed, although more than five months have elapsed since the rising of the court at the term at which the trial was had.

The case has been submitted upon said motion to dismiss. None of the alleged errors assigned in the petition in error for a reversal were called to the attention of the trial court by a motion for a new trial. In fact, no such motion was filed in the case, or presented to the district court, nor has any bill of exceptions been settled and allowed; hence no review of any of the assignments in the petition in error, except the third, could be had. Hosford v. Stone, 6 Neb. 380; Cruts v. Wray, 19 Neb. 581, 27 N. W. 634;Cheney v. Wagner, 30 Neb. 262, 46 N. W. 427;Gaughran v. Crosby, 33 Neb. 33, 49 N. W. 776;Jones v. Hayes, 36 Neb. 526, 54 N. W. 858;Upton v. Cady, 38 Neb. 209, 56 N. W. 881;Shrimpton v. King, 39 Neb. 779, 58 N. W. 286. It has been held in at least three of the cases cited above that the mere failure to file a ...